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6 June 2011

101: The Protection afforded to Facts and Data

One question which appears to crop up with reasonable regularity is: What is copyrightable with respect to data, facts, and articles? The subject can be studied with reference to copyright law and the Information Technology Act.

Definitions (“Data” and “Facts”)

“Data” is not defined in the Indian Copyright Act, 1957. A general principle of statutory interpretation is that where the legal meaning of a word is not defined in the relevant statute, the popular meaning of the word is considered. Unfortunately, there is very little clarity on what precisely the word “data” means, as it appears to have a variety of disparate meanings.

Depending on which authority one refers to, “data” can be either the plural form of “datum” or a singular noun. It may mean “something given”, “a fact/piece of information”, "transmittable and storable computer information" or “any proposition assumed or given, from which conclusions may be drawn”. Although some of these meanings are synonymous, they are not identical, which turns “data” into an extremely fluid term which is subject to interpretation, (which a lawyer could easily interpret to mean the diametric opposite of what might have been meant by the person using it).

Further, even though “data” is not defined under the copyright statute at all, and has no consistent dictionary meaning, it is pertinent to note that it is defined in Section 2(1)(o) of the Information Technology Act, 2000 as:

“data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;

Contrary to this, if one were to consider the word “fact”, its meaning is relatively clear. A “fact” is “an event or thing known to have happened or existed”, “a truth verifiable from experience or observation”, or “a piece of information”. Therefore, although a fact, too, is not defined by the Copyright Act, determining what constitutes a “fact” is easier than determining what constitutes “data” with respect to copyright law.

The Position under Copyright Law

Unfortunately, the Copyright Act does not contain explicit and separate statutory provisions in relation to either data or facts, and the legal position with reference to them is therefore heavily dependent on case-law and on copyright doctrine.

As a general rule, facts are not copyrightable. However, going back to copyright doctrine, a fact per se not being copyrightable does not extend to allowing copyright protection to be denied to the expression of a fact (as an article which includes one or more facts in its text).

Further, a fact in itself not being copyrightable does not also mean that a collection of facts is not copyrightable. This is what allows databases to be protected under copyright law. However, even though a collection of facts may be subject to copyright protection, in general, it would still not amount to infringement to extract a non-substantial number of facts from the collection, correlate them, and then analyse them in a new and original work.

The legal position is, however, murky, and it is generally advisable to obtain legal advice in this regard before embarking on any course of action.

The Information Technology Act, 2000

Even though the legal position under the Copyright Act is unclear, it is pertinent to note that the Information Technology Act contains provisions which may be relevant to the subject.

The IT Act defines “data” in Section 2(1)(o), and, among other things, prohibits the unauthorised extraction or copying of any data/computer database/information from a computer or removable storage device in Section 43(b). Finally, in Section 66, the IT Act states that any person who fraudulently or dishonestly violates Section 43 may be punished with imprisonment of up to three years or a fine of up to five lakh Indian rupees or both.

Other Laws
In addition to this, depending on the circumstances, facts may be protected under contract law (using instruments such as confidentiality agreements and website terms of use, as appropriate) and well as under tort law relating to unjust enrichment, and trespass to chattels.

Conclusion

Thus, although there is considerable confusion under copyright law, the provisions of the IT Act are relatively clear, and violating the provisions of the latter law could result in criminal prosecution.

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